December 19, 2013

As reported in this new article from theNew York Times, "President Obama, expanding his push to curtail severe penalties for drug offenses, is expected on Thursday to commute the sentences of eight federal inmates who were convicted of crack cocaine offenses. Each inmate has been imprisoned for at least 15 years, and six were sentenced to life in prison." Here is more about this interesting and exciting news:

It would be the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules and charging policies. Most of the eight would be released in 120 days.

In a statement prepared for release when the commutations are announced, Mr. Obama said that each of the eight men and women had been sentenced under what is now recognized as an “unfair system,” including under a 100-to-1 sentencing disparity between crack and powder cocaine offenses that was significantly reduced by the Fair Sentencing Act of 2011.

“If they had been sentenced under the current law, many of them would have already served their time and paid their debt to society,” Mr. Obama said. “Instead, because of a disparity in the law that is now recognized as unjust, they remain in prison, separated from their families and their communities, at a cost of millions of taxpayer dollars each year.”

The recipients include several high-profile inmates who have received news media attention as examples of the effects of earlier tough-on-crime drug sentencing policies, in which the quantities of crack involved sometimes resulted in severe punishments. Many of them were young at the time of their offense and were not accused of violence.

Clarence Aaron of Mobile, Ala., for example, was sentenced to three life terms in prison for his role in a 1993 drug deal, when he was 22. Mr. Aaron’s case has been taken up by congressional critics of draconian sentencing and by civil rights groups, and has received significant media attention. Last year, the Justice Department’s inspector general issued a report criticizing the department’s pardon office for mishandling his clemency petition.

Margaret Love, a former Justice Department pardon lawyer who represents Mr. Aaron, said she received a call informing her of the decision on Thursday morning and called her client, who along with his family was “very grateful.”

“He was absolutely overcome,” she said. “Actually, I was, too. He was in tears. This has been a long haul for him, 20 years. He just was speechless, and it’s very exciting.”

Mr. Obama, who has made relatively little use of his constitutional clemency powers to forgive offenses or reduce sentences, is also expected to pardon 13 people who completed their sentences long ago. Those cases involved mostly minor offenses that resulted in little or no prison time, in line with previous pardons he has issued.

But the eight commutations opened a major new front in the administration’s criminal justice policy intended to curb soaring taxpayer spending on prisons and to help correct what the administration has portrayed as unfairness in the justice system. Recipients also include Reynolds Wintersmith, of Rockford, Ill., who was sentenced in 1994 to life in prison for dealing crack when he was 17, and Stephanie George of Pensacola, Fla., who received a life sentence in 1997, when she was 27, for hiding a boyfriend’s stash of crack in a box in her house. In both cases, the sentencing judges criticized the mandatory sentences they were required to impose by federal law at the time, calling them unjust.

In December 2012, The New York Times published an article about Ms. George’s case and the larger rethinking of the social and economic costs of long prison terms for nonviolent offenders. Mr. Obama mentioned the article in an interview with Time magazine later that day and said he was considering asking officials about ways to do things “smarter.”

Around that time, a senior White House official said, Mr. Obama directed Kathryn Ruemmler, his White House counsel, to ask the Justice Department to examine pending clemency petitions to assess whether there were any in which current inmates serving long sentences would have benefited from subsequent changes to sentencing laws and policy. The deputy attorney general, James M. Cole, returned the eight cases with positive recommendations from the department about six weeks ago, the official said....

Legislation pending in Congress, including a bill co-sponsored by Senators Richard J. Durbin, Democrat of Illinois, and Mike Lee, Republican of Utah, would make the Fair Sentencing Act retroactive for some offenders, and it would build into the system a process for inmates to apply to a judge for case-by-case review of whether a reduced sentence would be appropriate. The Obama administration supports that bill, the White House said, as a more orderly and regular way to ensure individualized analysis in addressing the broader inmate population.

According to the group Families Against Mandatory Minimums, about 8,800 federal inmates sentenced for crack offenses before the Fair Sentencing Act would be eligible to apply for a reduced sentence were the bill to become law. “Commuting the sentences of these eight Americans is an important step toward restoring fundamental ideals of justice and fairness,” Mr. Obama said. “But it must not be the last. In the new year, lawmakers should act on the kinds of bipartisan sentencing reform measures already working their way through Congress. Together, we must ensure that our taxpayer dollars are spent wisely, and that our justice system keeps its basic promise of equal treatment for all.”

I am quite pleased Prez Obama is finally, finally, finally using his constitutional clemency powers in a truly consequential and meaningful way, and I am especially pleased that there are now eight more defendants (and families) who get some relief from the unfair 100-1 pre-FSA crack sentences that nobody ever seeks to defend substantively. However, the numbers reported above highlight that for every new bit of post-FSA fairness achieved by these commutations, a thousand other defendants (and families) must continue to live with the consequences of a reform that has been interpreted only to prevent future injustices and not fix past ones.

More broadly, though I do not want to turn a praiseworthy act by Prez Obama into an excuse for more criticism, there is a cynical voice in my head that is not only eager to fault the limited reach of this new round of clemency, but also its timing. Perhaps intentionally, these grants could (and perhaps should) be marginalized as just a holiday tradition, not as a bold statement of executive priorities. Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch.

Better summing up my cynicism is a response to this news from Professor Mark Osler: "Good news... But just one lifeboat off the titanic. With no structural change, the ship is still sinking."

Comments

"Even more worrisomely, as there is on-going talk of statutory sentencing reforms in Congress, these grants might provide some basis for opponents of broader reforms to contend that truly troublesome cases can and should be just handled and remedied by the executive branch."

What could make you think such a thing?

Posted by: Bill Otis | Dec 19, 2013 4:44:18 PM

Today's 8 commutations of sentence are the largest number granted by any president on a single day since December 18, 1970, when Richard Nixon granted 15.

I wonder if, politically, the President (and Governors exercising similar authority) would be well-served by getting out in front of potential bad behavior by the folks getting released: recognizing that there is a possibility that one of these people will recividate, but that it's worth taking a chance on them for X, Y, and Z reasons.

Recividism being what it is, it is inevitable that at least someone released "early" will commit a violent crime that, if unaddressed, will set the pardon movement back 30 years (for good or ill). There's a reason we all know the name Willie Horton. If the pardoning authority were to make it clear that they recognize the risk and think it acceptable, they might be able to insulate themselves--even if in a small way--from the inevitable backlash.

Posted by: GP | Dec 19, 2013 7:36:26 PM

GP --

"If the pardoning authority were to make it clear that they recognize the risk and think it acceptable, they might be able to insulate themselves--even if in a small way--from the inevitable backlash."

Politicians with fat security details won't get much insulation for deeming "acceptable" risks that will be borne only by others.

Posted by: Bill Otis | Dec 19, 2013 7:57:01 PM

PS Ruckman: "Today's 8 commutations of sentence are the largest number granted by any president on a single day since December 18, 1970, when Richard Nixon granted 15."

Didn't Clinton commute 36 sentences on his last day in office (January 20, 2001)?

Posted by: Thinkaboutit | Dec 19, 2013 10:47:20 PM

Bill,

Once again you appear sympathetic to an argument that I can't believe you actually think has merit. It is, of course, the height of flabby logic to condemn commutations, as a class, because someone might re-offend. Rational decision makers will weigh that risk against the benefits of making computations more a theoretical possibility. Put otherwise, it is weak tea to claim that because there will be the occasional Willie Horton, communications should be exceedingly rare. Of those sophisticated enough to understand cost-benefit calculations, only a cynic trying to score political points would make that argument. Good for the politicians who have the integrity to standup tp populist idiocy on this issue. You obviously have much to contribute to this conversation, but you unfortunately often seem frequently to prefer snark to really digging in on the logic and merits.

Posted by: Mark | Dec 20, 2013 12:16:41 AM

Nixon -- Clinton -- Obama.
▼ Axis of Sleazil. ▼

Posted by: Adamakis | Dec 20, 2013 8:53:08 AM

Mark: would that the tea and all its celebrants remain weak . . . we can only hope

Posted by: alan chaset | Dec 20, 2013 9:29:38 AM

Mark --

I was making a discrete point: That decisions will properly garner more respect, and will very likely be more carefully deliberated, when the person making them has the same chance of having to live with the results as everyone else. Do you disagree?

Posted by: Bill Otis | Dec 20, 2013 11:06:06 AM

Bill,

Thanks for the clarification. I actually don't disagree with that, although if we are going to rely exclusively on presidential or governor commutations to mitigate the harshness of our sentencing laws, that may be a difficult to accomplish (presidents and governors are, indeed, well protected). Maybe your point is a good one in favor of more reliance on broader Congressional action or powers for parole boards (with some representation from the community). Final point: It would be nice, and in the holiday spirit, for you and other "hardliners" to applaud these -- frankly, fairly unobjectional commutations -- rather than offer criticism. Everyone should be glad about these cases, wherever one stands on some of the tougher calls in sentencing policy.

Posted by: Liberty Lawyer | Dec 20, 2013 12:25:39 PM

Thinkaboutit. You are correct. I thought I had amended it here. Apologies. http://www.pardonpower.com/2013/12/obamas-commutations-context.html

I definitely think that the pardon power should be used more--particularly with respect to those who have long been released from prison and have lived law-abiding lives since incarceration. With respect to this batch--I think the issue of backlash should be addressed not by saying that risks must be taken, but that the sentence probably shouldn't have been imposed in the first place. Did Clarence Aaron deserve to go to jail for the rest of his life for what he did? That's ultimately the question, and, of course, whether his actions while imprisoned merit clemency.

One thing that must be remembered--these people aren't necessarily victims. There are some prosecutions and sentences that are beyond the pale unjust--for example, some of the prosecutions in DC for innocent/technical violations of gun laws--made more particularly unjust because David Gregory willfully violated the law and then got a hookup.

And by the by, before we get all dewy-eyed about Obama, it cannot be forgotten that President Obama endorsed Martha Coakley for Senate and is best buds with Deval Patrick. Coakley successfully lobbied to keep Gerald Amirault behind bars even though no one believes him guilty of any crime. Patrick doesn't lift a finger to correct the obscenity of forcing Mr. Amirault to live life as a sex offender. If Obama is so all about justice, how could he stand to be in the same room with these contemptible creatures?

Posted by: federalist | Dec 21, 2013 3:05:19 PM

My name is Margaret Dickerson , my husband is serving a unfair sentence for a first time drug charge . He was sentence about a few months before the new law was in affect . and under the new law he would have only served about 2-5 years and been out by now the judge gave him 60 years suspended 40 to do 20 in prison. he has done 7 years . We have tried to get some one to help, no one will listen he has no violent history . he is 50 years old now all we want is a fair sentence enough is a enough I have MS and need him home. IF anyone reads this PLEASE HELP US THANK YOU MARGARET DICKERSON

Posted by: margaret dickerson | Apr 26, 2014 8:51:37 PM

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